2. Being aggrieved by the judgment of the High Court of Delhi dated the 21st of February, 2011 in CM(M) 1018 of 2010, these appeals have
been filed by the parties before the High Court, who are parents of two children, whose custody is the subject matter of these appeals.

3. As the impugned order is challenged in both these appeals, both the appeals were heard together and they are being decided by this
common order. For the sake of convenience, parties to the litigation
have been referred to hereinbelow as arrayed in Civil Appeal arising
out of Special Leave petition No. 13254 of 2011.

4. The marriage of the appellant and the respondent was solemnized on
14.02.1994. From the wedlock, two sons were born, who are
approximately 15 and 9 years old. The appellant and the respondent
have been living separately since 10.04.2007, and have been involved
in various litigations since then, including a petition for divorce under Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the appellant-father and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by the respondent mother.
The appellant, who is an IAS officer, stationed at Jammu at present, had sought certain modifications in the arrangement of custody of the children, and also permission to take transfer certificates of the children from Delhi and complete their admission in a school in Jammu, and in this respect, moved applications dated 25.05.2010 and 22.06.2010 before the Additional District Judge. The Learned Additional District Judge, vide order dated 19.07.2010 was pleased to allow the applications moved by the appellant-father.

5. Being aggrieved by the above-mentioned judgment delivered by the
Trial Court, the respondent preferred CM(M) No. 1018 of 2010 before
the High Court. By virtue of the impugned judgment, the High Court
partly allowed the petition filed by the respondent whereby the
respondent was permitted to have custody of the younger son, whereas
the appellant was to have custody of the elder son.

6. While coming to the above conclusion, the High Court has cited
various decisions in support of the contention that while deciding the issue about custody of children in a matrimonial dispute, the
paramount consideration is that of welfare of the child. Thereafter, on the basis of interaction with the children in the Chambers, the learned Single Judge was of the view that the elder son had a strong desire to stay with the appellant-father. He also found that there was also an admission by the respondent-mother that she would not be able to adequately handle the educational needs of the elder son without tutors. For the aforestated reasons, the learned Single Judge ordered that custody of the elder son should remain with the appellant-father.

7. In the case of the younger son, the learned Single Judge observed that he, being of a very tender age, was incapable of forming a definite preference as to with whom he wanted to stay. In the circumstances, the learned Single Judge ordered that the custody of the younger son should be given to the respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.

8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.

9. Being aggrieved by the said judgment, both the parties have come
before this Court vide the present appeals.

10.We heard the learned counsel for the parties, and also spoke to the children at length.

11. The counsel appearing for the appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a separation on them. Thereafter, the learned counsel made further submissions about the poor academic performance of the younger son while in the custody of the respondent-mother, and also regarding the alleged adulterous conduct of the respondent-mother, which was said to have a severe adverse effect on the children. The learned counsel further added that the father of the appellant, i.e. grand father of the children, is staying with the appellant and he, being a very educated person, would be in a position to take good care of the children. On these grounds inter alia, the learned counsel argued that both the children ought not to have been separated, and that custody ought to have been granted to the appellant-father.

12.On the other hand, the learned counsel appearing for the respondent mother submitted that looking to the service condition and status of the appellant-father, occupying a stressful position in the state of Jammu & Kashmir, he would not have sufficient time to give adequate attention to the children and if custody of the children is given to him, the children would be taken care of only by servants and that would not be in the interest of the children. Further, the learned counsel argued that as the children were already in a very good school in Delhi, it would not be just and proper to move them to another school in Jammu & Kashmir which might be of an inferior standard. For the aforestated reasons, the learned counsel argued that custody of even the elder son ought to have been granted to the respondent-mother.

13.On hearing the learned counsel and also upon talking at length with the children, we find force in the arguments of the counsel for the appellant-father.

14.Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.

15.If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children.

16.We are of the view that the children should be with the appellant father. The respondent-mother is not in a position to look after the
educational need of the elder son and as we do not desire to separate
both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.

17.We are sure that the appellant- father, who is a member of Indian
Administrative Service and is a well groomed person, with the help of
his father, who was also a professor, will be able to take very good
care of the children. Their education would not be adversely affected
even in Jammu and Kashmir as it would be possible for the appellant father to get them educated in a good school in Jammu. We do not
believe that the children would remain in company of servants as
alleged by the learned counsel appearing for the respondent-mother.
Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated
grandparents would not only help the children in their studies but
would also help them to imbibe cultural and moral values and good
manners.

18.So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.

19.During the period of vacation exceeding two weeks, the appellant father shall send the children to Delhi so that the children can stay
with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to
during which portion of the vacation, the children should visit the
respondent-mother as almost both the parents are interested in having
the company of the children.

20. For the aforestated reasons and looking to the peculiar facts of the case, we quash and set aside the impugned order passed by the High Court and restore the order of the trial court, subject to modification of conditions-arrangements, recorded hereinabove. The custody of both the children shall be given to the appellant-father before 15th May,2012 and the arrangements with regard to visit of the children etc. shall take effect from 1st June, 2012, the respondent-mother shall do the needful to send the younger son to the residence of the appellant father before 15th May, 2012.

Disclaimer:

The family of the writer was tortured by the Indian Law which are bias against the Indian Husband. Thousands of 498A, DV Act 2005 & Maintenance cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.